COURT OF APPEALS STATE OF COLORADO 2 East 14th Avenue Denver, CO 80203 Mesa County District Court Honorable David A. Bottger, Judge Case No. 15CR700 Plaintiff-Appellee, THE PEOPLE OF THE STATE OF COLORADO, v. Defendant-Appellant, OLIVIA NAVARRO-GONZALEZ.

COURT USE ONLY Case No. 16CA0728

CYNTHIA H. COFFMAN, Attorney General FRANK R. LAWSON, Assistant Attorney

General* Ralph L. Carr Colorado Judicial Center 1300 Broadway, 9th Floor Denver, CO 80203 Telephone: 720-508-6000 E-Mail: frank.lawson@coag.gov Registration Number: 47042 *Counsel of Record

PEOPLE’S ANSWER BRIEF

DATE FILED: August 20, 2018 2:48 PM FILING ID: 9EAF3A9C956DC CASE NUMBER: 2016CA728

CERTIFICATE OF COMPLIANCE I hereby certify that this brief complies with all requirements of C.A.R. 28 or C.A.R. 28.1, and C.A.R. 32, including all formatting requirements set forth in these rules. Specifically, the undersigned certifies that: The brief complies with the word limits set forth in C.A.R. 28(g) or C.A.R. 28.1(g).

☒It contains 8218 words (principal brief does not exceed 9500 words; reply brief does not exceed 5700 words).

The brief complies with the standard of review requirements set forth in C.A.R. 28(a)(7)(A) and/or C.A.R. 28(b).

☒In response to each issue raised, the appellee must provide under a separate heading before the discussion of the issue, a statement indicating whether appellee agrees with appellant’s statements concerning the standard of review and preservation for appeal and, if not, why not.

I acknowledge that my brief may be stricken if it fails to comply with any of the requirements of C.A.R. 28 or 28.1, and C.A.R. 32.

/s/ Frank R. Lawson Signature of attorney or party

TABLE OF CONTENTS

PAGE

i

STATEMENT OF THE ISSUES ............................................................... 1

STATEMENT OF THE FACTS AND CASE ............................................ 1

SUMMARY OF THE ARGUMENT .......................................................... 5

ARGUMENT ............................................................................................. 6

I. Standard of Review / Preservation .................................................. 6

II. The trial court properly found that reasonable suspicion justified the prolonged stop and detention. ..................................... 8

A. Background ..................................................................................... 9

B. Police did not violate defendant’s Fourth Amendment rights by prolonging her stop beyond the time necessary to complete the traffic citation. ........................................................ 16

1. Relevant Law ........................................................................ 16

2. Application ............................................................................ 18

C. Police had a reasonable suspicion of wrongdoing to prolong defendant’s stop and detain her for the K-9 sniff. ....................... 21

1. The record supports the trial court’s factual finding that Trooper Gosnell observed the cash, card, and phones during his initial contact with defendant. ............... 21

2. The totality of the evidence supported a reasonable suspicion of criminal wrongdoing. ........................................ 25

i. The Reasonable Suspicion Standard ........................... 26

ii. Application ................................................................. 268

iii.Summary ...................................................................... 32

TABLE OF CONTENTS

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III. The record supports the trial court’s finding that Deputy

Miller did not facilitate or encourage Libby to enter the car during the open-air sniff. ............................................................... 33

A. Background ................................................................................... 34

B. Relevant Law ................................................................................ 35

C. Application .................................................................................... 37

IV. The trial court’s determination that probable cause supported the hand search of defendant’s vehicle was not error, much less plain error. .......................................................... 39

A. The probable cause determination was not erroneous. .............. 41

1. Relevant Law ........................................................................ 41

2. Application ............................................................................ 42

B. The alleged error did not rise to the level of plain error. ............ 45

CONCLUSION ........................................................................................ 47

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CASES

Alabama v. White, 496 U.S. 325 (1990) .................................................. 26 Arizona v. Johnson, 555 U.S. 323 (2009) ................................................ 19 California v. Acevedo, 500 U.S. 565 (1991) ............................................. 41 Commonwealth v. Overmyer, 11 N.E.3d 1054 (Mass. 2014) .................. 46 Felders ex rel. Smedley v. Malcom, 755 F.3d 870 (10th Cir. 2014).......

.....................................................................................................35, 36, 37 Florida v. Harris, 568 U.S. 237 (2013) .................................................... 41 Hagos v. People, 2012 CO 63 .................................................................... 8 Illinois v. Caballes, 543 U.S. 405 (2005) ........................................... 17, 35 Mendez v. People, 986 P.2d 275 (Colo. 1999) ................................... 41, 42 Ornelas v. United States, 517 U.S. 690 (1996) ....................................... 16 People v. Cardman, 2017 COA 87 ............................................................ 8 People v. Castaneda, 249 P.3d 1119 (Colo. 2011) ............................. 27, 30 People v. Cervantes-Arredondo, 17 P.3d 141 (Colo. 2001) ..................... 16 People v. Chavez-Barragan, 2016 CO 66 ........................................ passim People v. Cox, 2017 CO 8 ................................................................ passim People v. Garcia, 11 P.3d 449 (Colo. 2000) ............................................. 17 People v. Huynh, 98 P.3d 907 (Colo. App. 2004) .................................... 26 People v. Madrid, 179 P.3d 1010 (Colo. 2008) ........................................ 23 People v. McKnight, 2017 COA 93 .......................................... 5, 42, 43, 45 People v. Morales, 935 P.2d 936 (Colo. 1997) ......................................... 29 People v. Omwanda, 2014 COA 128 ......................................................... 7 People v. Ortega, 34 P.3d 986 (Colo. 2001) ............................................. 29 People v. Pacheco, 182 P.3d 1180 (Colo. 2008) ....................................... 27

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People v. Polander, 41 P.3d 698 (Colo. 2001) ......................................... 26 People v. Quintero-Amador, 2015 CO 59 ................................................ 22 People v. Ramirez, 1 P.3d 223 (Colo. App. 1999) .................................... 29 People v. Reyes, 956 P.2d 1254 (Colo. 1998) ........................................... 46 People v. Reyes-Valenzuela, 2017 CO 31 ........................................ passim People v. Rodriguez, 945 P.2d 1351 (Colo. 1997) ........................ 17, 18, 21 People v. Saiz, 32 P.3d 441 (Colo. 2001) ................................................. 25 People v. Salyer, 80 P.3d 831 (Colo. App. 2003) ....................................... 8 People v. Staton, 924 P.2d 127 (Colo. 1996) ............................................. 7 People v. Ujaama, 2012 COA 36 ............................................................. 45 People v. Zuniga, 2016 CO 52 ........................................................ passim Salcedo v. People, 999 P.2d 833 (Colo. 2000) .......................................... 31 Sanchez-Martinez v. People, 250 P.3d 1248 (Colo. 2011) ....................... 39 Scott v. People, 2017 CO 16 ............................................................. 45, 46 United States v. Arvizu, 534 U.S. 266 (2002) ......................................... 27 United States v. Davis, 636 F.3d 1281 (10th Cir. 2011) ......................... 29 United States v. Everett, 601 F.3d 484 (6th Cir 2010) ........................... 19 United States v. Ilazi, 563 F.Supp. 730 (D. Minn. 1983) ....................... 29 United States v. Lopez, 849 F.3d 921 (10th Cir. 2017) .......................... 18 United States v. Moore, 795 F.3d 1224 (10th Cir. 2015) .................. 40, 46 United States v. Pena-Ponce, 588 F.3d 579 (8th Cir. 2009) ................... 29 United States v. Stone, 866 F.2d 359 (10th Cir. 1989) ..................... 36, 38 United States v. Thomas, 290 F.Supp.3d 1162 (D. Colo. 2017) . 17, 18, 21 United States v. Vasquez-Ortiz, 344 Fed.Appx. 551 (9th Cir. 2009) ..... 29 United States v. Vazquez, 555 F.3d 923 (10th Cir. 2009) ................ 36, 37

TABLE OF AUTHORITIES

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United States v. Williams, 403 F.3d 1203 (10th Cir. 2005) ................... 46 United States v. Winningham, 140 F.3d 1328 (10th Cir. 1998) ....... 36, 38 United States v. Wood, 106 F.3d 942 (10th Cir. 1997) ........................... 31

STATUTES

§ 16-10-201, C.R.S. (2017) ....................................................................... 24 § 18-18-405(1), C.R.S. (2017) ..................................................................... 3 § 18-18-405(2)(a)(I)(B), C.R.S. (2017) ........................................................ 4 § 42-4-903(2), C.R.S. (2017) ....................................................................... 4

STATEMENT OF THE ISSUES

Defendant raises three issues in arguing that the trial court

erroneously denied her motion to suppress evidence collected after a

traffic stop: (1) Whether the trial court erred in finding reasonable

suspicion justified the prolonged stop and detention (the initial stop was

for a lane change violation; the eventual arrest was for drug possession

with intent to distribute). (2) Whether the trial court erred in finding

no evidence of trespass into the car by the police K-9 or her handler

during the open-air sniff. (3) Whether the trial court erred in finding

that the open-air sniff provided probable cause for a hand search of

defendant’s vehicle where the K-9 had been trained to alert for legal

amounts of marijuana in addition to illegal narcotics.

STATEMENT OF THE FACTS AND CASE

On June 10, 2015, Colorado State Patrol Trooper Shane Gosnell

pulled defendant over for a traffic violation in Mesa County. CF, pp

68-69; TR 12/7/15, pp 12-14. Deputy Michael Miller of the Mesa County

Sheriff’s Office — a K-9 handler — responded five minutes later to

2

assist. CF, p 69; TR 12/7/15, pp 25-26. After the officers collected

information, both suspected that defendant was transporting narcotics.

See, e.g., TR 12/7/15, pp 29-31, 70-74.

The roots for their suspicion is summarized below, but explained

in greater detail in the sections that follow. Defendant was traveling in

a California rental car from Riverside (near Los Angeles) to Denver

with a Nevada driver’s license. CF, p 69; TR 12/7/15, pp 29-30. She

appeared to be living out of the car, but had no apparent luggage for the

trip. See TR 12/7/15, pp 15-17. She also had a small dog, but only

minimal supplies (food only; no leash, toys, etc.). Id. at 15-16. The

miles she had traveled — according to a comparison of the odometer

and the rental agreement — did not correlate to her description of the

trip. CF, p 69; TR 12/7/15, pp 22-25, 70. In addition, she was carrying a

large amount of cash in her wallet (later determined to be $1300),1 a

1 It was later discovered that defendant carried separate collections of cash both in her wallet and her pocket. Taken separately, one amounted to $1300 and the other $1700. TR 1/13/16, p 15:7-9. At the suppression hearing, Trooper Gosnell identified the amount in the wallet as $1700. TR 12/7/15, pp 17-18. But at trial, it was clarified that the wallet in fact held the $1300. TR 1/13/16, p 54:10-14.

3

Santa Muerte card, and multiple cell phones. CF, p 69; TR 12/7/15, pp

17-22. She also had a “Sinaloa” tattoo on one arm with a “Sonora”

tattoo on the other, and she appeared very nervous. CF, p 69; TR

12/7/15, pp 25, 71.

Almost immediately after Trooper Gosnell issued defendant a

warning for the traffic violation, Deputy Miller and his K-9 — Libby —

conducted an open-air sniff of her vehicle’s exterior. CF, p 70; TR

12/7/15, pp 28-29, 75:21-24. Libby quickly alerted for narcotics,

whereupon defendant was detained and the officers performed a hand

search of the vehicle. CF, p 70; TR 12/7/15, pp 32, 74-75; see also Env

(12/7/15), EX 3, 15:37:10-15:43-45. They found 3.57 pounds of brown

heroin hidden in a small compartment inside the vehicle’s trunk.2 CF,

p 70; TR 12/7/15, p 19:3-4.

Defendant was charged with possession of a controlled substance

with intent to manufacture or distribute, § 18-18-405(1), (2)(a)(I)(B),

2 Trooper Gosnell testified at trial that this amount of heroin likely carried a value of approximately $428,000 to $500,000. TR 1/13/16, p 105:3-6.

4

C.R.S. (2017), and as a special offender, § 18-18-407(1)(c), C.R.S. (2017).

CF, pp 66-67. She was also charged with a traffic infraction for failure

to signal for the required distance, § 42-4-903(2), C.R.S. (2017). Id.

Following a three-day trial, a jury found her guilty as charged. CF,

p 87; TR 1/14/16, pp 102-04. The trial court sentenced her to sixteen

years in the Department of Corrections, followed by thirty-six months of

mandatory parole. CF, pp 95-96.

Pertinent to this appeal, defendant moved to suppress the

evidence collected from her car prior to trial. CF, pp 35-37. The court

held a hearing in which it heard live testimony from Trooper Gosnell

and Deputy Miller, and reviewed a dash-cam video that recorded the

traffic stop, dog sniff, and hand search. TR 12/7/15, passim; Env

(12/7/15), EX 3. The video also included audio from a microphone

attached to Trooper Gosnell. The trial court ultimately denied the

motion in a written order. CF, pp 68-72. Defendant appeals that order.

5

SUMMARY OF THE ARGUMENT

I. During defendant’s traffic stop, officers noticed specific and

articulable facts that suggested she was transporting narcotics. The

trial court correctly considered these facts under the totality of the

circumstances to conclude that a reasonable suspicion of wrongdoing

existed to extend the traffic stop for additional investigation.

II. Defendant contends that the open-air K-9 sniff transitioned into a

search in violation of her Fourth Amendment rights when the dog

poked her head into the vehicle’s windows. The trial court disagreed

because Deputy Miller did not facilitate or encourage the dog’s “entries.”

This factual finding is supported by both the dash-cam video and the

Deputy’s sworn testimony, and should not be disturbed on appeal. And

because the finding supports the trial court’s conclusion that the sniff

did not become a search, the conclusion should likewise be upheld.

III. In a special concurrence to People v. McKnight, 2017 COA 93 (cert.

granted Jan. 16, 2018), Judge Jones wrote that a K-9 alert — in and of

itself — cannot establish the probable cause necessary to conduct a

search. Defendant contends that this issue presents itself in the case at

6

hand. To the extent this Court addresses defendant’s argument (rather

than finding it waived), the People respectfully disagree.

This case aligns with People v. Cox, 2017 CO 8, in which the K-9

alert was one of multiple facts supporting a probable cause

determination. And even assuming, arguendo, that the search was

supported by the K-9 alert alone, any error arising from the

determination was not plain error under the circumstances.

ARGUMENT

I. Standard of Review / Preservation

The People agree that the suppression order raises mixed

questions of fact and law. People v. Chavez-Barragan, 2016 CO 66, ¶ 18

(in the context of reasonable suspicion); People v. Zuniga, 2016 CO 52, ¶

13 (in the context of probable cause). Appellate courts defer to the trial

court’s factual findings that are supported by competent evidence, but

review the trial court’s legal conclusions de novo. Chavez-Barragan, ¶

18.

7

The People also agree (though with one caveat3) that the first and

second issues were preserved by defendant’s motion to suppress. CF, pp

35-37; see also TR 12/7/15, pp 2-3. These issues are subject to

constitutional harmless error review. People v. Omwanda, 2014 COA

128, ¶ 31.

The People disagree, however, that defendant’s third argument

was preserved by either her motion or subsequent argument at the

suppression hearing. See CF, pp 35-37; TR 12/7/15, passim.

Specifically, defendant did not challenge the officer’s probable cause to

hand search her vehicle on the ground that Libby had been trained to

alert for non-contraband. This argument is, therefore, waived. See,

e.g., People v. Staton, 924 P.2d 127, 133 (Colo. 1996) (To preserve a

suppression issue for appeal, where other grounds for suppression are

3 The caveat is that defendant challenges, for the first time on appeal, the trial court’s use of certain evidence in its reasonable suspicion analysis — (1) the cash observed in her wallet, (2) a Santa Muerte card also observed in her wallet, and (3) two cell phones observed in the vehicle’s center console. Opening, pp 23-25. The consequences for not raising her contention with the trial court are addressed in detail in Section (II)(C)(1), infra.

8

stated in the motion to suppress, defendant “must have stated [the

issue] initially as a ground for his motion to suppress.”); People v.

Cardman, 2017 COA 87, ¶ 37 (“Because defendant moved to suppress

the statements solely on reinitiation grounds, he waived the

voluntariness claims) (cert. granted Feb. 12, 2018); People v. Salyer, 80

P.3d 831, 835 (Colo. App. 2003) (issues not raised in fourth amendment

hearing need not be addressed on appeal).

Assuming, arguendo, that this Court nonetheless chooses to

consider the third argument, it is — at best — subject to plain error

review. See Hagos v. People, 2012 CO 63, ¶ 14.

II. The trial court properly found that reasonable suspicion justified the prolonged stop and detention.

The broad contention underlying the first issue is that police

violated defendant’s Fourth Amendment rights by extending the search

and seizure beyond the scope of a routine traffic citation. Under this

umbrella, defendant presents two overlapping arguments: (1) that

police prolonged the stop beyond the time necessary to complete the

traffic citation; and (2) that police did not have a reasonable and

9

articulable suspicion to prolong the stop and detain defendant for the

K-9 sniff. Defendant is incorrect on all accounts.

A. Background

As previously noted, defendant filed a motion to suppress the

evidence collected from her car as fruit of an unlawful detention, search,

and seizure. CF, p 35. The trial court held a hearing on the motion in

which it observed the dash-cam video and heard live testimony from

Trooper Gosnell and Deputy Miller. TR 12/7/15, pp 4-65, 66-84; Env

(12/7/15), EX 3. The evidence — beginning with the officers’ experience

and training — is summarized below.

Investigating Officer’s Training and Experience

At the time of defendant’s arrest, Trooper Gosnell worked for the

Colorado State Patrol’s smuggling, trafficking, interdiction section in

Mesa County. TR 12/7/15, pp 4-5. He had a bachelor’s degree in

criminal justice, four years prior experience as a road trooper in Eagle

County, and had completed the Colorado State Patrol Academy. Id.

Between 2011 and 2015, he had conducted roughly 1200 traffic stops

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per year, and had also completed in excess of 250 hours of criminal

interdiction training. Id. at 5:15-22; see also EX 1 (curriculum vitae).

Deputy Miller was an investigator with the Western Colorado

Drug Task Force, and had been working with the Mesa County Sheriff’s

Office for almost twenty-two years. Id. at 67:11-16. He specialized in

drug interdiction on the highway, with an estimated thousand hours in

training on the subject. Id. at 67-68. He had also been a K-9 handler

since 1998. Id. at 70:1-2. Libby was his third certified narcotics dog,

and had been working with him since 2007. Id. at 70, 76.

The Traffic Stop

On June 10, 2015, Trooper Gosnell was patrolling along mile

marker 10 of I-70, near Fruita. TR 12/7/15, pp 6-7. He observed

defendant in a silver sedan with a California license plate “traveling

notably slower” than the other passenger vehicles, and consequently

impeding the flow of traffic around a commercial truck. Id. at 8-9. As

she passed the Trooper’s position, the defendant gave the appearance

that she did not want to be seen. She leaned behind the seam of the

driver’s side door, avoided looking in his direction, and changed the

11

position of her hands on the steering wheel from 10-and-2 to 9-and-3.4

Id. at 8:12-18.; CF, p 68. Shortly afterwards, she failed to properly

signal while merging into the right lane, whereupon the Trooper pulled

her over. TR 12/7/15, pp 12-14. (On appeal, defendant does not dispute

the legality of the initial stop.)

Living out of the Vehicle with a Small Dog

Trooper Gosnell quickly became suspicious that more than a

traffic violation was afoot when he noted that defendant appeared to be

living out of the vehicle with a small dog. Specifically, the car was from

California, and there was a used sleeping bag crumpled on the

floorboard along with gas station food wrappers and dog food scattered

in and out of bowls behind the front passenger seat. TR 12/7/15, pp

15-16. But defendant did not appear to have luggage for a trip, and she

had no other supplies for the dog (i.e., a leash, toys, etc.). Id. at 16-17.

4 Trooper Gosnell explained that this behavior corresponded with the “closed off” position employed by drivers trying to avoid police attention. TR 12/7/15, pp 10-11.

12

From the Trooper’s training and experience, he knew that drug

couriers often slept in their vehicles to ensure the security of their

shipment. Id. at 17:11-20. He was also familiar with couriers bringing

dogs while transporting drugs to distract police K-9’s in case of an

open-air sniff. Id. at 16-17.

Cash, Card, and Cell Phones

The Trooper’s suspicion of wrongdoing grew after making contact.

He observed defendant retrieve her license from a brown wallet in the

center console, on top of which sat two cell phones. TR 12/7/15, pp 17,

21. As she opened the wallet, the Trooper saw a Santa Muerte card

along with a substantial amount of cash — “so much that if you had like

receipts or something in your wallet, you would have a hard time . . .

folding it because there’s so much in that pocket of the wallet.” Id. at

18-19.

In his experience, drug couriers often used two cell phones “[s]o

the business stuff is kept separate from the personal phone.” Id. at

21:15-23. Additionally, some drug couriers view the Santa Muerte

image as a good luck token. Id. at 19-20. And the unusually large

13

amount of currency corresponded with the amount paid a drug courier,

and did not correspond with someone sleeping out of their car on a road

trip. Id. at 18-19. (Why not rent a motel room?)

Connected to Source Locations for Narcotics Distribution

After providing her license, defendant told Trooper Gosnell that

her trip originated from Riverside, California. TR 12/7/15, pp 20-21.

The Trooper knew that Riverside is close to Los Angeles, and that Los

Angeles is a source city for narcotics distribution. Id. at 22-23, 30.

The Trooper also noticed that defendant had a “Sinaloa” tattoo on

one arm with a “Sonora” tattoo on the other. Id. at 20:16-18. From his

training, he knew that Sinaloa is a region in Mexico from which a

substantial amount of narcotics smuggling originates. Id. at 20-21.

Inconsistent or Peculiar Travel Plans

When Deputy Miller arrived to assist, both officers noted

peculiarities arising from defendant’s purported travel plans. She

explained that she had taken a Greyhound bus from Nevada to

Riverside to paint houses for a couple weeks. TR 12/7/15, pp 22-25, 30,

72. She then rented a car to travel back through Las Vegas (where her

14

mother lives) in route to Denver to meet some friends. Id. But this

itinerary conflicted with the mileage she had in fact traveled. Based on

a comparison of the car’s odometer to the rental agreement, defendant

had traveled approximately 1300 miles. Id. at 23-34. 70-72. The

distance between Riverside and Mesa County was roughly 740 miles.

Id.

In addition, the officers found it odd that she did not have luggage

for such a trip; that she planned to return from Denver to Riverside

rather than her home in Nevada; and that her destination in Denver

was, at best, vague — she planned on visiting friends but she did not

know where they lived. Id.at 24, 71-73.

Lastly, Trooper Gosnell noted that defendant’s car rental

agreement appeared to have expired. Id. at 24. While defendant

claimed she renewed the agreement for another three days, this

additional time did not correspond with her travel plans — the

extension she described would have expired the following day while she

was still in Denver. Id. at 25.

15

Unusually Nervous

Trooper Gosnell further observed that defendant appeared

unusually nervous. He noted shaking hands, voice deflection, verbal

pauses, and that her pulse was visible in her neck. TR 12/7/15, pp 25,

49. In addition, she avoided eye contact and laughed nervously when he

asked if she was carrying anything illegal in the vehicle. Id. at 28.

Deputy Miller also noted that “she was certainly nervous.” Id. at

71. In particular, he testified that she hesitated and stuttered when

responding to questions. Id. at 72.

Open-Air K-9 Sniff

By the time the officers completed verifications related to the

traffic violation, they felt they had a reasonable suspicion to conduct a

K-9 sniff around the exterior of defendant’s car. TR 12/7/15, pp 29,

73-74. Because the K-9 was already on site, this could be — and, in

fact, was — accomplished immediately. Id. at 74-76; see also Env

(12/7/15), EX 3, 15:36:45.

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The open-air sniff resulted in multiple positive alerts, whereupon

a subsequent hand search resulted in the discovery of the

aforementioned heroin. TR 12/7/15, pp 32, 74-75.

B. Police did not violate defendant’s Fourth Amendment rights by prolonging her stop beyond the time necessary to complete the traffic citation.

Defendant first argues that it was unlawful for Trooper Gosnell

and Deputy Miller to prolong her stop beyond the time reasonably

required to issue her traffic citation. Because the additional time was

required to investigate a new suspicion of wrongdoing based on

evidence discovered during the execution of the traffic citation, she is

incorrect.

1. Relevant Law

Traffic stops generally fall in the category of investigatory stops,

and are thus permissible under the Fourth Amendment if supported by

reasonable suspicion. Chavez-Barragan, ¶ 19 (citing Ornelas v. United

States, 517 U.S. 690, 693 (1996)); People v. Cervantes-Arredondo, 17

P.3d 141, 147 (Colo. 2001). Of course, such stops must be “brief in

17

duration, limited in scope, and narrow in purpose.” People v. Garcia, 11

P.3d 449, 453 (Colo. 2000). That is, a traffic stop may become

unreasonable if the detention is “prolonged beyond the time reasonably

required to complete” its mission (i.e., verify a motorist’s license, check

vehicle registration, run a check for outstanding warrants assuming the

procedure does not unreasonably extend the duration of the detention,

and issue the ticket or warning). Chavez-Barragan, ¶ 20 (quoting

Illinois v. Caballes, 543 U.S. 405, 407 (2005)).

That being said, the stop may lawfully be extended to permit

further investigation if the officer discovers information giving rise to a

new reasonable suspicion while completing the aforementioned tasks.

Id. at ¶ 21. For instance, in People v. Rodriguez, 945 P.2d 1351, 1361

(Colo. 1997), a stop for weaving was lawfully extended when

registration card errors gave rise to a reasonable suspicion that the

vehicle was stolen. Likewise, in United States v. Thomas, 290

F.Supp.3d 1162, 1168-69 (D. Colo. 2017), a stop for suspected drunk

driving was lawfully extended for a dog sniff when the officer’s

observation of fifty credit cards in the backseat gave rise to an

18

objectively reasonable suspicion of an additional crime. But in United

States v. Lopez, 849 F.3d 921, 925-26 (10th Cir. 2017) — for sake of

comparison — an officer did not have reasonable suspicion to prolong a

traffic stop to await the arrival of a drug dog when the driver did not

exhibit unusual nervousness, there was no incriminating evidence in

plain view, and the driver’s travel story was plausible under the

circumstances.

The present case aligns with Rodriguez and Thomas.

2. Application

Trooper Gosnell lawfully pulled defendant over for a lane

violation. His initial observations called for a shift in the investigatory

purpose of the stop. In the end, it took a total of twenty-three minutes

to both issue the traffic warning and investigate the suspicion of drug

trafficking. This was three to eight minutes more than the time

ordinarily taken to issue a traffic citation alone.5

5 Trooper Gosnell testified that it ordinarily took him fifteen to twenty minutes to issue a traffic citation. TR 12/7/15, p 26.

19

To begin, the People submit that the additional three to eight

minutes did not trigger the concerns represented by the Fourth

Amendment. See Arizona v. Johnson, 555 U.S. 323, 333 (2009) (“An

officer’s inquiries into matters unrelated to the justification for the

traffic stop . . . do not convert the encounter into something other than a

lawful seizure, so long as those inquiries do not measurably extend the

duration of the stop.”). Here, the time for additional investigation

largely overlapped with that taken to complete the tasks associated

with the traffic citation. And because the investigation was pursued

diligently and efficiently, it simply was not “great enough to be worth

consideration.” See United States v. Everett, 601 F.3d 484, 491-92 (6th

Cir 2010) (interpreting “measurable” to mean “significant” or “great

enough to be worth consideration”); Chavez-Barragan, ¶ 28 (recognizing

as relevant the fact police “proceeded with reasonable diligence”).

But even so, the brief extension did not violate defendant’s Fourth

Amendment rights. “If, while completing the normal tasks incident to a

traffic stop, an officer discovers information giving rise to a new

reasonable suspicion, the encounter may lawfully be extended to permit

20

further investigation.” Chavez-Barragan, ¶ 21; see also ¶ 26 (“[A] shift

in the investigatory purpose is not improper when the underlying

detention remains lawful.”).

Here, Trooper Gosnell became suspicious that defendant was

transporting drugs based on observations he made while contacting her

for the traffic violation.6 His suspicions were reasonable under the

totality of the circumstances. See Section (II), supra (describing the

totality of the circumstances supporting the officers’ suspicion).

Consequently, the return of defendant’s warrant checks did not require

a conclusion to the investigation, as defendant contends. Opening, pp

20-21. Nor was it improper for the officers to make non-stop related

questions, or for Trooper Gosnell to fill out a consent-to-search form. Id.

In sum, the stop was lawfully extended by three to eight minutes

to investigate a reasonable and articulable suspicion that defendant

was transporting narcotics based on information observed while

executing the traffic citation. This does not reflect a Fourth

6 Defendant does not dispute the legality of the initial traffic stop on appeal.

21

Amendment violation. See, e.g., Rodriguez, 945 P.2d at 1361; Thomas,

290 F.Supp.3d at 1168-69.

C. Police had a reasonable suspicion of wrongdoing to prolong defendant’s stop and detain her for the K-9 sniff.

In an argument that overlaps with the prior analysis, defendant

claims that Trooper Gosnell and Deputy Miller did not have a

reasonable and articulable basis to prolong the stop and detain

defendant for the open-air K-9 sniff. In support, she claims that (1) the

trial court erroneously considered the cash, Santa Muerte card, and

multiple cell phones in its analysis; and (2) the remaining evidence did

not give rise to a reasonable suspicion of wrongdoing. The People

address each position in turn.

1. The record supports the trial court’s factual finding that Trooper Gosnell observed the cash, card, and phones during his initial contact with defendant.

The trial court found that Trooper Gosnell observed the cash,

card, and phones during his initial contact with defendant. CF, p 69.

For the first time on appeal, defendant points to statements made on

22

the dash-cam video to suggest that Trooper Gosnell did not observe

these items until after the search.7 Relying on his interpretation of

these statements, he argues that this Court should not defer to the trial

court’s contrary factual finding when performing its own suppression

analysis. He is incorrect.

When reviewing a suppression order, appellate courts defer to the

trial court’s factual findings if they are supported by competent

evidence in the record. People v. Quintero-Amador, 2015 CO 59, ¶ 15.

Here, the trial court considered both the dash-cam video and Trooper

Gosnell’s live testimony when issuing its order. The video showed the

trooper’s contact with defendant from the perspective of the police

vehicle. The trooper’s testimony then expounded upon his observations

inside the vehicle. Taken together, the trial court found the trooper

7 After defendant’s arrest, an unknown officer asks Trooper Gosnell: “Do you know where she put her wallet?” He responds: “She never had one. That I know of.” Env (12/7/15), EX 3, 16:15:20-28. Shortly afterwards, he says: “Actually, Mike may know because he said there was $2000 somewhere.” Id. at 16:15:28. A little while later, while Trooper Gosnell and the unknown officer are looking through the vehicle, the Trooper says: “Oh, here’s her wallet, man. And she’s got a couple phones.” Id. at 16:27:51.

23

observed the cash, card, and phones when first contacting defendant.

Because the finding is supported by the record (both the video and the

live testimony), it should be deferred to on appeal.

Citing to People v. Madrid, 179 P.3d 1010, 1014 (Colo. 2008),

defendant argues that this Court should nonetheless undertake an

independent review of the facts. Again, he is incorrect. In Madrid, the

Colorado Supreme Court conducted an independent review of the facts

depicted in a police interrogation video because it found itself in

precisely the same position as the trial court. Id. That is, the evidence

was audio- and video-recorded, there were no disputed facts outside the

record bearing on the issue of suppression, and the trial court did not

make detailed factual findings. Id.

Here, however, this division is not in the same position as the trial

court at the suppression hearing. Specifically, the dash-cam video does

not reveal what Trooper Gosnell observed when speaking with

defendant in her car. Accordingly, the present case aligns with People

v. Chavez-Barragan, 2016 CO 66, ¶ 5 n.1. There, the Colorado Supreme

Court reviewed a dash-cam video that “captured most of what happened

24

after the [traffic] stop.” Id. However, because the recording did not

include important portions of the encounter (i.e., conversations outside

of the car), the Court deferred to the trial court’s record-supported

factual findings, which were made after hearing live testimony. Id.

As applied here, the factual finding at issue rested on a

combination of the dash-cam video and Trooper Gosnell’s live

testimony. The trial court considered both, and found the Trooper’s

statements in line with the video and credible under the circumstances.

Because this finding is supported by the record, this Court must defer.

Lastly, it is important to note that the dash-cam statements do

not necessarily undermine Trooper Gosnell’s testimony at the

suppression hearing. To the extent they appear inconsistent, the

statements were made in passing. It is therefore possible the trooper

misunderstood the other officer’s question, or simply misspoke.

Defendant did not raise this issue at the suppression hearing.

Accordingly, the failure to afford Trooper Gosnell an opportunity to

explain the inconsistency effectively renders defendant’s present use of

the statements inappropriate on appeal. Cf. § 16-10-201, C.R.S. (2017);

25

People v. Saiz, 32 P.3d 441, 445-46 (Colo. 2001) (extrinsic evidence of a

prior inconsistent statement must be competent for the purpose for

which it is offered; to be competent, the evidence must satisfy the

requirements of admissibility; for an inconsistent statement to be

admissible, the witness must be given an opportunity to explain or deny

the statement).

In sum, the trial court’s factual finding — that Trooper Gosnell

observed the cash, car, and cell phones during his initial encounter with

defendant — is supported by the record. The statements on the

dash-cam video do not necessarily contradict, or otherwise render that

finding erroneous. Accordingly, this Court should incorporate the

trooper’s observation of the cash, Santa Muerte card, and multiple cell

phones in the totality of the circumstances when conducting its

suppression analysis.

2. The totality of the evidence supported a reasonable suspicion of criminal wrongdoing.

Defendant next argues that Trooper Gosnell and Deputy Miller

did not have a reasonable suspicion supporting defendant’s prolonged

26

detention because they ignored legitimate explanations for the facts

before them, and simply fit those facts to a drug-courier profile.

Opening, p 26. Because “[c]ourts should not engage in a ‘divide-and-

conquer analysis in which courts dismiss individual factors that have

plausible innocent explanations,” she is incorrect. People v. Reyes-

Valenzuela, 2017 CO 31, ¶ 14.

i. The Reasonable Suspicion Standard

The reasonable suspicion standard requires “considerably less

than proof of wrongdoing by a preponderance of the evidence and is less

demanding even than the ‘fair probability’ standard for probable cause.”

People v. Polander, 41 P.3d 698, 703 (Colo. 2001) (quoting Alabama v.

White, 496 U.S. 325, 330 (1990)). It is satisfied if “‘the police have

specific and articulable facts, greater than a mere hunch, to support’

their belief that the person to be stopped is or may have been involved

in criminal activity.” People v. Huynh, 98 P.3d 907, 912 (Colo. App.

2004) (internal quotation omitted).

In assessing whether reasonable suspicion exists, courts must

consider the totality of the circumstances known to the investigating

27

officer, as well as rational inferences that can be drawn therefrom.

People v. Pacheco, 182 P.3d 1180, 1183 (Colo. 2008). This includes

consideration of the investigating officer’s experience and specialized

training and the reasonable inferences and deductions that the officer

may draw based on that background. United States v. Arvizu, 534 U.S.

266, 273 (2002), cited in Pacheco, 182 P.3d at 1183.

A reasonable, articulable suspicion “may exist even where

innocent explanations are offered for conduct.” People v. Castaneda,

249 P.3d 1119, 1122 (Colo. 2011) (holding that an even higher standard,

probable cause, may exist when several otherwise-innocent acts appear,

in the aggregate, to be indicative of criminal activity), quoted in

Reyes-Valenzuela, ¶ 14. “The fact that innocent explanations may be

imagined does not defeat a probable cause showing.” Castaneda, 249

P.3d at 1122. “Instead, the police are entitled to draw appropriate

inferences from circumstantial evidence, even though such evidence

might also support other inferences.” Id.

Furthermore, “[c]ourts should not engage in a ‘divide-and-conquer

analysis’ in which courts dismiss individual factors that have plausible

28

innocent explanations.” Reyes-Valenzuela, ¶ 14. “A series of innocent

facts, when taken together, may warrant further investigation.” Id.

ii. Application

Trooper Gosnell and Deputy Miller explained to the trial court the

bases for their suspicion that defendant was carrying illegal narcotics in

light of their substantial training and experience. The trial court

considered their testimony in conjunction with the dash-cam video.

Under the totality of the circumstances, the trial court found — in a

written order — that the evidence gave rise to a reasonable suspicion

that defendant was engaged in illegal activity, justifying the prolonged

stop and open-air dog sniff. CF, pp 68-72.

The trial court’s determination should be affirmed because its

factual findings are supported by the record (see Section (II)(C)(1),

supra), and its legal conclusion conforms with the law. To begin, the

factors applied by the trial court have been recognized and considered

favorably in other suppression cases. For example:

29

• Originating from a source city see, e.g., People v. Ortega,

34 P.3d 986, 995 (Colo. 2001); People v. Morales, 935 P.2d

936, 941 (Colo. 1997).

• Inconsistencies or suspicious travel plans see, e.g.,

Morales, 935 P.2d at 941; United States v. Davis, 636 F.3d

1281,1291 (10th Cir. 2011).

• Unusual nervousness see, e.g., People v. Ramirez, 1 P.3d

223, 226 (Colo. App. 1999).

• Peculiar absence of luggage see, e.g., United States v.

Ilazi, 563 F.Supp. 730, 735 (D. Minn. 1983).

• Tattoos suggesting gang membership see, e.g., United

States v. Vasquez-Ortiz, 344 Fed.Appx. 551, 554 (9th Cir.

2009).

• Use of a rental car, especially with an expired agreement

see, e.g., Davis, 636 F.3d at 1291.

• Possession of a Santa Muerte image see, e.g., United

States v. Pena-Ponce, 588 F.3d 579, 584 (8th Cir. 2009).

30

• Carrying multiple cell phones see People v. Cox, 2017 CO

8, ¶ 21.

More importantly, however, when these and the other factors (i.e.,

the cash, sleeping bags, and small dog) are taken together under the

totality of the circumstances, they support a reasonable and articulable

suspicion that defendant was transporting narcotics in the case at hand.

See Section (II)(C)(2)(i), supra.

Defendant presents several arguments for a contrary outcome.

First, she contends that “[g]eneric, innocent facts cannot form the

objective basis required for reasonable suspicion, even if police fit them

to a drug-courier profile.” Opening, p 26. The People, however, read

this as an inaccurate statement of the law. As noted above, our

Supreme Court has explained that “[a] reasonable, articulable suspicion

‘may exist even where innocent explanations are offered for conduct.”

Reyes-Venezuela, ¶ 14 (citing Castaneda 249 P.3d at 1122 (holding that

an even high standard, probable cause, may exist when several

otherwise-innocent acts appear, in the aggregate, to be indicative of

criminal activity)). And while conformity to a drug courier profile may

31

not establish probable cause, it “may give rise to an officer’s reasonable

suspicion that the suspect is in possession of illegal narcotics.” Salcedo

v. People, 999 P.2d 833, 841 (Colo. 2000) (citing cases in which this

proposition may be inferred).

Second, she contends that certain factors should be parsed from

the analysis as “so innocent or susceptible to varying interpretations as

to be innocuous.” Opening pp 26-41 (quoting United States v. Wood, 106

F.3d 942, 946 (10th Cir. 1997)). But to fall within this context, the court

must be without concrete reasons for the investigating officer’s

interpretation of the evidence as suspicious. See Wood, 106 F.3d at 948

(“Although the nature of the totality of the circumstances test makes it

possible for individually innocuous factors to add up to reasonable

suspicion, it is impossible for a combination of wholly innocent factors to

combine into a suspicious conglomeration unless there are concrete

reasons for such an interpretation.” 106 F.3d at 948 (emphasis added)).

Here, Trooper Gosnell and Deputy Miller testified at to why each and

every factor bolstered their suspicion that defendant was a drug courier.

See Section (II)(A), supra.

32

• Los Angeles as a source city TR 12/7/15, p 30.

• Use and late return of a rental car Id. at 24-25, 72.

• Absence of luggage / presence of sleeping bags Id. at 16-

17, 62, 71-72.

• Unusual or inconsistent travel plans Id. at 22-25, 70-73.

• Tattoos Id. at 20-21.

• Nervousness Id. at 48-50.

But even if — for argument’s sake — this Court found that one or

more of the factors challenged in the opening brief (which does not

include all the factors) should be disregarded,8 the People submit that

the remaining factors nonetheless amount to a reasonable and

articulable suspicion of wrongdoing to support the open-air K-9 sniff.

iii. Summary

Even if there might, arguably exist a plausible, innocent

explanation for many of the individual factors when viewed alone, this

8 For sake of clarity, the People also incorporate the argument in Section (II)(C)(1) that the cash, Santa Muerte card, and cell phones should likewise not be parsed from this Court’s analysis.

33

does not render the trial court’s determination erroneous. See Reyes-

Venezuela, ¶ 14.

Instead the factors must be viewed under the totality of the

circumstances, giving consideration to reasonable inferences drawn by

the investigating officers based on their experience and training. Doing

so here, the trial court correctly determined that the evidence provided

a reasonable and articulable suspicion that defendant was engaged in

illegal activity at the time of her stop. In short, it was not a mere

hunch. Accordingly, police did not violate her Fourth Amendment

rights by detaining her for an open-air K-9 sniff.

III. The record supports the trial court’s finding that Deputy Miller did not facilitate or encourage Libby to enter the car during the open-air sniff.

Within a footnote in its suppression order, the trial court found

that while Libby stuck her head through the vehicle’s windows, this

entry was not facilitated or encouraged by Deputy Miller. Absent such

conduct by Deputy Miller, Libby’s entry did not constitute a search

requiring probable cause. The finding, stated in its entirety, is as

follows:

34

I recognize that [Deputy] Miller’s dog stuck its head through the open driver’s and passenger side windows. Absent evidence that it was commanded, encouraged or trained to do so, this does not transform its sniff into a search.

CF, p 70 n.1.

Defendant contends that this finding was erroneous. However,

because there is record support for the finding — specifically, the

dash-cam video taken in conjunction with Deputy Miller’s suppression

hearing testimony — she is incorrect.

A. Background

For the Court’s reference, the K-9 sniff can be observed on the

dash-cam video between roughly 15:36:45 and 15:38:45. Env (12/7/15),

EX 3. It appears that Libby poked her head into the vehicle four times,

as reflected at 15:37:15, 15:37:39, 15:37:44, and 15:38:18. And Libby

appears to alert at around 15:37:20, 15:37:40, 15:38:10, and 15:38:20,

although it is possible she alerted earlier.

Deputy Miller’s testimony addressing the K-9 sniff can be found

on pages 74-76 (direct) and 83-84 (cross) of the suppression hearing

transcript. TR 12/7/15. Notably, he explains that though Libby

35

immediately alerted, she did not sit because of the wet ground. He also

testified that she alerted before she poked her head into the car, and

that these pokes were in spite of his best efforts to control her.

Because neither the defense, nor the People, nor this honorable

Court have the same experience and training as Deputy Miller in

conducting an open-air sniff or recognizing Libby’s alerts, the video and

testimony need to be considered together.

B. Relevant Law

There does not appear to be a published Colorado Supreme Court

or Court of Appeals opinion addressing the transition from open-air

sniff to search by way of the police dog’s physical intrusion. There is,

however, an abundance of Tenth Circuit cases directly on point.

To summarize, a police dog’s open-air sniff outside a car during a

lawful traffic stop does not constitute a search requiring probable cause.

Felders ex rel. Smedley v. Malcom, 755 F.3d 870, 880 (10th Cir. 2014)

(citing Illinois v. Caballes, 543 U.S. 405, 409 (2005)). However, the

dog’s entry into the vehicle may become a Fourth Amendment violation

if facilitated or encouraged by officers. Id.

36

For instance, in United States v. Vazquez, 555 F.3d 923, 930 (10th

Cir. 2009), the Tenth Circuit found no constitutional violation where

“(1) the dog’s leap into the car was instinctual rather than orchestrated,

and (2) the officers did not ask the driver to open the point of entry . . .

used by the dog.” Similarly, in United States v. Stone, 866 F.2d 359,

364 (10th Cir. 1989), a dog’s instinctive leap into a car by way of a

hatchback opened by the defendant did not violate the Fourth

Amendment where there was no evidence that officers either

encouraged or facilitated the dog’s entry.

But in United States v. Winningham, 140 F.3d 1328, 1331 (10th

Cir. 1998), the court found a Fourth Amendment violation where (1) the

dog jumped into the car through a door opened by officers, and (2)

evidence indicated a desire to facilitate the dog’s entry into the vehicle.

Similarly, in Felders, 755 F.3d at 877, 884-86, an open-air sniff became

a search when officers first prevented the car door from closing after

asking passengers to exit, and then effectively guided the dog to the

open door.

This case aligns with Vazquez and Stone.

37

C. Application

To begin, the People disagree with defendant’s characterization of

Libby’s behavior. The dog never “leap[ed] into the vehicle.” Opening,

p 43. She briefly poked her head into and out of two open windows

while sniffing the car’s exterior. See Env (12/7/15), EX 3, 15:37:15;

15:37:39; 15:37:44; 15:38:18.

To the extent this nonetheless triggers a Fourth Amendment

analysis, the next question is whether Deputy Miller facilitated or

encouraged Libby to do so. Felders, 755 F.3d at 880. The record

supports the trial court’s finding that he did not.

First, the windows had been rolled down by defendant prior to the

encounter without instruction or encouragement from the officers.

Compare Felders, 755 F.3d at 880 (finding Fourth Amendment violation

where the dog entered by a car door that officers prevented from closing

after asking the passengers to exit), with Vasquez, 555 F.3d at 930

(finding no Fourth Amendment violation where officers did not ask the

driver to open the point of entry).

38

Second, there is simply no suggestion in the video or testimony

that Deputy Miller facilitated or encouraged Libby to poke her nose into

the window. Compare Winningham, 140 F.3d at 1331 (finding Fourth

Amendment violation where evidence indicated the officer facilitated

the dog’s entry into the vehicle), with Stone, 866 F.2d at 364 (finding no

Fourth Amendment violation where there was no evidence that officers

encouraged or facilitated the dog’s entry). Instead, Deputy Miller

explained at the suppression hearing that he tries to control Libby the

best he can, but the nature of the search is that she takes the lead. See

TR 12/7/15, pp 74-75.

In addition, it appears at least three — if not all four — of Libby’s

“entries” occurred after she alerted for narcotics.9 That is, contrary to

defendant’s argument in her opening brief, the dash-cam video shows

Libby clearly still and pointing at a location on the car before the

second, third and fourth poke of her head into the car window. Env

9 To the extent defendant suggests that Libby has to sit to alert, this is not supported by the record. See TR 12/7/15, p 83:7-8 (indicating that Libby may alert by stopping and staring).

39

(12/7/15), EX 3, 15:37:20, 15:37:40, and 15:38:10. As for the first

“entry,” Deputy Miller testified that an alert had already occurred. TR

12/7/15, p 83:1-5. While this might not be readily evident from the

video, the ambiguity presents an insufficient basis to reverse the trial

court’s factual finding. See Sanchez-Martinez v. People, 250 P.3d 1248,

1254 (Colo. 2011) (to be clearly erroneous, the finding must have “no

factual support in the record.”). The People mention this because the

fact that Libby had already alerted supports Deputy Miller’s testimony

that he did not encourage her “entries.” In short, why would he need

to?

IV. The trial court’s determination that probable cause supported the hand search of defendant’s vehicle was not error, much less plain error.

In its written order resolving defendant’s suppression motion, the

trial court summarized its determinations as follows:

Trooper Gosnell’s observations of Defendant’s driving provided at least reasonable suspicion that she had violated §§ 42-4-1103(1) (impeding traffic) and 42-4-903(1) (required signal before lane change, C.R.S. The factors cited above provided reasonable suspicion to justify Defendant’s detention beyond the traffic stop so

40

the dog sniff could occur. The alert by Investigator Miller’s dog provided probable cause for the subsequent search. United States v. Moore, 795 F.3d 1224, 1232 (10th Cir. 2015). The discovery of illegal drugs provided probable cause for Defendant’s arrest.

CF, p 72 (emphasis added).

Defendant contends that the trial court erred in finding Libby’s

alert provided the probable cause necessary for the subsequent hand

search of her vehicle. This, according to defendant’s opening brief, is

because Libby had been trained to detect legal amounts of marijuana in

additional to illegal narcotics. Opening, p 46.

To begin, the People note that this argument was not raised with

the trial court. In fact, it is not clear from the record if Libby has been

trained to alert for marijuana in addition to illegal narcotics.

Accordingly, the argument should be considered waived. See Section (I),

supra.

Nonetheless, should the Court consider the argument (and further

assume that Libby has been trained to alert for both contraband and

non-contraband), there was no error because the dog sniff was but one

41

piece of evidence supporting the probable cause determination. And

even assuming there was error, the issue was not sufficiently obvious to

justify reversal as plain error.

A. The probable cause determination was not erroneous.

1. Relevant Law

Police officers may conduct a warrantless search of an automobile

if they have probable cause to believe that the automobile contains

evidence of a crime. People v. Zuniga, 2016 CO 52, ¶14; see also

California v. Acevedo, 500 U.S. 565, 5880 (1991). An officer has

probable cause to conduct such a search when the facts before him or

her “would warrant a [person] of reasonable caution in the belief” that

contraband or evidence of a crime is present. Zuniga, ¶ 16 (quoting

Florida v. Harris, 568 U.S. 237, 243 (2013)).

“[P]robable cause is a common sense concept” that rests on a

consideration of the totality of the circumstances. Id.; see also Mendez

v. People, 986 P.2d 275, 280 (Colo. 1999). “It is not a standard that

‘lend[s] itself to mathematical certainties’ and instead is based on

42

‘factual and practical considerations of everyday life on which

reasonable and prudent people, not legal technicians, act.” Id. (quoting

Mendez, 986 P.2d at 280). “In sum, the totality of the circumstances

test for probable cause is an ‘all-things-considered approach’ that calls

for consideration of any and all facts that a reasonable person would

consider relevant to a police officer’s belief that contraband or evidence

of a crime is present.” Id.

2. Application

The People acknowledge that, as written, the trial court’s order

appears to base its relevant probable cause determination on Libby’s

alert alone. Assuming, arguendo, that this is the case, the

determination would appear to conflict with Judge Jones’s special

concurrence in People v. McKnight, 2017 COA 93, ¶ 48 (“[A] drug-

detection dog’s alert does not alone give a Colorado state law

enforcement officer probable cause to conduct a search of a vehicle[.]”)

(cert. granted Jan. 16, 2018).

It should be noted, however, that the trial court’s probable cause

finding rests under five pages of analysis supporting its reasonable

43

suspicion determination. See CF, pp 68-72. One may assume the court

incorporated this analysis within its probable cause determination.

This is not important, however, because when reviewing

suppression orders, this Court reviews the trial court’s application of

the law de novo. Zuniga, ¶ 11. That is, this Court reviews de novo

whether “the facts available to the officer would warrant a person of

reasonable caution in the belief that contraband or evidence of a crime

is present.” Id. at ¶ 13. In this case, the facts available to the officers

went beyond the dog search, and included all of the observations and

inferences discussed in the aforementioned sections.

With this in mind, the People submit that the present case does

not turn on the special concurrence in McKnight. Rather, this case is

analogous to People v. Cox, 2017 CO 8.

In Cox, our Supreme Court recognized that although a K-9 may be

trained to alert for legal amounts of marijuana in addition to illegal

narcotics, this does not warrant exclusion of the alert as evidence. Id.

at ¶ 17. That is, “while a possible innocent explanation may impact the

weight given to a particular fact in a probable cause determination, it

44

does not wholly eliminate the fact’s worth and require it to be

disregarded.” Id. (quoting Zuniga, ¶ 23). Instead, when a K-9 alert

suggests the presence of illegal drugs in the vehicle, it may be

considered as part of the totality of the circumstances. Id.

Thus, the Supreme Court in Cox considered the K-9 alert “coupled

with the fact that Cox had two cell phones on the car seat, exhibited

unusual nervousness, and gave an inconsistent explanation regarding

his travels.” Based on this evidence, the Court found probable cause

existed to search the trunk of Cox’s vehicle. Id.

The present case presents the exact same facts as applied in Cox:

the K-9 alert, multiple cell phones, unusual nervousness, and an

inconsistent explanation of travel plans. In addition, this Court may

also consider the fact that defendant’s trip originated from a source

location by way of a rental car; that she was living out of the car with a

dog despite no luggage or supplies and ample cash; and that she

displayed a tattoo associated with a region in Mexico that supplies a

large volume of narcotics to the United States while simultaneously

carrying a Santa Muerte card that is considered a good luck token for

45

drug couriers. Under the totality of the circumstances, the officers had

probable cause to search the trunk of defendant’s vehicle.

B. The alleged error did not rise to the level of plain error.

But assuming — arguendo — that this Court considers Libby’s

alert in isolation, and further assuming this Court agrees with the

special concurrence in McKnight (currently before the Colorado

Supreme Court on writ of certiorari), the trial court’s determination was

not plain error.

“To qualify as plain error, the error must be one that is so

clear-cut, so obvious, a trial judge should be able to avoid it without

benefit of objection.” People v. Ujaama, 2012 COA 36, ¶ 42 (internal

quotation omitted). “[A]n error is generally not obvious when nothing

in Colorado statutory or prior case law would have alerted the trial

court to the error.” Scott v. People, 2017 CO 16, ¶ 17.

Here, the trial court did not have the benefit of Zuniga, (issued

June 2016), Cox (issued February 2017), or McKnight (issued July 2017)

at the time it wrote the suppression order (issued December 2015).

46

Instead, the court relied on what was — at the time — a “well

established” principle that “[a] canine alert [provides] probable cause to

search a vehicle.” United States v. Moore, 795 F.3d 1224, 1231 (10th

Cir. 2015) (quoting United States v. Williams, 403 F.3d 1203, 1207 (10th

Cir. 2005); see also People v. Reyes, 956 P.2d 1254, 1257 (Colo. 1998) (“In

certain circumstances, a ‘canine sniff’ by a trained narcotics detection

dog may give rise to probable cause.”); Commonwealth v. Overmyer, 11

N.E.3d 1054, 1058-59 (Mass. 2014) (as discussed in Zuniga and Cox).

Because the trial court’s determination was in line with

jurisprudence existing at the time of the order, it was not so obviously

erroneous as to qualify as plain error. See Scott, ¶ 18.

47

CONCLUSION

For the foregoing reasons and authorities, the district court’s

denial of defendant’s motion to suppress, and the ensuing judgments of

conviction, should be affirmed.

CYNTHIA H. COFFMAN Attorney General /s/ Frank R. Lawson FRANK R. LAWSON, 47042* Assistant Attorney General Attorneys for *Counsel of Record

CERTIFICATE OF SERVICE This is to certify that I have duly served the within PEOPLE’S

ANSWER BRIEF upon CASEY MARK KLEKAS and all parties herein

via Colorado Courts E-filing System (CCES) on August 20, 2018.

/s/ Tiffiny Kallina